Before the Court is the motion of defendants, Bechtel Associates Professional Corporation, D.C. and Bechtel Civil and Minerals, Inc. (collectively Bechtel), for summary judgment on the ground that, with respect to the matter at hand since Bechtel was (in its view) an agent of the Washington Metropolitan Area Transit Authority (WMATA), no action lies against Bechtel because a statute prohibits tort actions against WMATA's agents. Plaintiffs have cross-moved for partial summary judgment on the question of whether Bechtel is an agent of WMATA for purposes of the same statute. This question has been briefed by the parties in overwhelmingly extensive detail, some nine lengthy pleadings attempting to explicate the issue having been submitted for consideration, including a transcript of an evidentiary hearing on this issue before the Honorable Howard F. Corcoran of this Court.
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It is now ready for decision. For the following reasons, the Court finds that with respect to the events giving rise to the instant lawsuit, the defendants were indeed agents of WMATA and are entitled to summary judgment in their favor. In light of the entry of judgment in Bechtel's favor, the Court sua sponte grants plaintiffs leave to amend the complaint promptly to name WMATA as defendant, it being clear that WMATA would not be prejudiced by such an amendment inasmuch as WMATA has been aware of the instant litigation since its agent, Bechtel, has been a party thereto since the outset.

Plaintiffs have sued Bechtel for the injuries the male plaintiff sustained in a fall onto exposed rebar rods while he was working on a WMATA subway station construction site. Plaintiffs allege that Bechtel was under contract with WMATA to supervise safety measures and insure job safety at all WMATA construction sites, that Bechtel was negligent in recognizing but not promptly correcting the allegedly dangerous condition created by the exposed rods, and that such alleged negligence was the proximate cause of the male plaintiff's injuries.

WMATA derives its existence and powers from the WMATA Compact, which was entered into by the District of Columbia and the states of Virginia and Maryland with the approval of Congress. The Compact is codified at D.C. Code § 1-2431. Section 80 of the Compact provides in relevant part that

The (Washington Metropolitan Area Transit) Authority shall be liable for its contracts and for its torts and those of its Directors, officers employees and agent committed in the conduct of any proprietary function, in accordance with the law of the applicable signatory (including rules on conflict of laws), but shall not be liable for any torts occurring in the performance of a governmental function. The exclusive remedy for such breach of contracts and torts for which the Authority shall be liable, as herein provided, shall be by suit against the Authority.

Bechtel's position is that because it performed its responsibility to monitor safety under the direction and control of WMATA, it was acting as an agent of WMATA and therefore, under Section 80, is immune to suit.

Upon considering the materials submitted by the parties including the transcript of the testimony at the evidentiary hearing, it cannot be doubted that WMATA has pervasive control over Bechtel
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with regard to safety functions. WMATA, through its Contracting Officer, controls the direction of the Resident Engineer. The WMATA-Bechtel contract requires that the Resident Engineers' Manual be approved by WMATA's Contracting Officer. Exhibit L to Defendants' Supplemental Statement. The Contracting Officer is required to be kept fully informed of all operations, and Bechtel's authority to conduct operations is subject to approval of the Contracting Officer. Scope of Services-1978. The Resident Engineer takes specific directions from the Contracting Officer, and Bechtel cannot countermand those orders. Tr. 39-41. Orders given by the Contracting Officer to the Resident Engineer in the past have concerned very specific instructions relating to safety, involving such matters as the use of a particular substance known to the Contracting Officer to be hazardous, Tr. 48; Defendants' Exhibit 10a-b, and the jobsite accident rate. Tr. 47; Defendants' Exhibit 7. As such, it is WMATA's own view, expressed by that agency's counsel at the hearing, that based upon the actions that the Contracting Officer takes, WMATA controls Bechtel's Resident Engineer with regard to safety activities. Tr. 8.

Moreover, WMATA has a substantial measure of control over the hiring and firing of the Resident Engineer and other Bechtel personnel working on Metro sites. The Contracting Officer's approval is necessary before Bechtel can hire a Resident Engineer for a particular job; likewise, a Resident Engineer may not be reassigned without the Contracting Officer's approval. Tr. 32-33. As a matter of practice, a Resident Engineer cannot be fired without the concurrence of the Contracting Officer. Tr. 33.

It is clear that the terms of the Bechtel-WMATA arrangement, as discussed above, establish an agency relationship between these entities. Essential to the establishment of an agency relationship is consent between two parties that one will act on the other's behalf and subject to his control. See, e.g., Riss & Co. v. Association of Western Railways, 159 F. Supp. 288, 293 (D.D.C.), motion to vacate denied 162 F. Supp. 69 (1958); Restatement (Second) of Agency § 1 (1958). The right of the principal to control the agent is crucial to the existence of an agency relationship. See, e.g., N. L. R. B. v. Local No. 64, 497 F.2d 1335, 1336 (6th Cir. 1974); Restatement (Second) of Agency § 14, and comments thereto. Similarly, the element of control and the obligation of the controlled party of obedience are important to establish that an independent contractor is also an agent. Restatement (Second) of Agency § 14N and comment a thereto; see also, e.g., Petition of United States, 367 F.2d 505, 509 (3d Cir. 1966), cert. denied Black v. United States, 386 U.S. 932, 87 S. Ct. 953, 17 L. Ed. 2d 805, and cert. denied Allen v. Mathiasen's Tanker Industries, Inc., 386 U.S. 932, 87 S. Ct. 957, 17 L. Ed. 2d 805, reh. denied 386 U.S. 1000, 87 S. Ct. 1303, 18 L. Ed. 2d 354 (1967). All these factors are present in the instant situation. WMATA did have sufficient control over Bechtel to put Bechtel in the position of WMATA's agent. As such, under Section 80 of the WMATA Compact, WMATA, and not Bechtel, is the proper defendant to this action.

In light of the foregoing, it is, by the Court, this 11th day of June, 1982,

ORDERED, that the motion of defendants Bechtel Associates Professional Corporation, D.C. and Bechtel Civil and Minerals, Inc. for summary judgment in light of Section 80 of the WMATA Compact shall be granted and an appropriate judgment entered, and it is

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